Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Thursday, June 26, 2008

ACTA paranoids - or those who are merely observant - will not be comforted by the U.S. Senate hearing that just took place regarding searching and seizure of laptops without any basis for suspicion, a practice so far vindicated by no less than the the Ninth Circuit Court of Appeals.According to the NY Times,quoting a Homeland Security official, infringing IP is one of the things that border guards are looking for.

[Senator] Feingold expressed discontent that the Department of Homeland Security, which oversees the customs and border agency, did not send a witness to testify. He said a written statement by Jayson P. Ahern, deputy commissioner for the agency, provided “little meaningful detail on the agency’s policies.”

Mr. Ahern’s statement said that the agency’s efforts did not infringe upon privacy and that it was important to note that the agency was “responsible for enforcing over 600 laws at the border, including those that relate to narcotics, intellectual property, child pornography and other contraband, and terrorism.” (emphasis added)

So, could a ripped CD or a downloaded unpaid for MP3 could result in action by Homeland Security?

It seems to be right up there with narcotics, child porn and terrorism. And this is pre- ACTA.

Would they really do anything about a few ripped CDs or downloaded MP3s?

Would large record companies sue children and dead grandmothers?

Today the border - tomorrow your home?

Oh, brave new world....

As I must repeatedly stress, being in favour of balance, privacy and the best use of policing resources is not tantamount to condoning piracy. It's all a question of reason and rationality.

Exclusive Legal broadband subscription services that permit file sharing may appear on the market by the year's end, according to music industry sources - after government intervention brought both music suppliers and ISPs to the table....

One should not get overly excited by such reports, since such proposals have been floated before and have so far fizzled.

Wednesday, June 25, 2008

The one and only Justice Posnerruled today on the one and only Conrad Black's appeal. (unuprisingly denied). There 's really nothing relevant to this blog other than that Justice Posner is a very important and great mind on IP matters and many other matters and that the Black case has a certain obvious connection to Canada, as the reasons make clear.

It also has this vintage passage about ostriches:

Three more issues need to be discussed. The first iswhether an “ostrich” instruction should have beengiven. The reference of course is to the legend thatostriches when frightened bury their head in the sand. Itis pure legend and a canard on a very distinguishedbird. Zoological Society of San Diego, Birds: Ostrich,www.sandiegozoo.org/animalbytes/t-ostrich.html (visitedJune 12, 2008) (“When an ostrich senses danger andcannot run away, it flops to the ground and remains still,with its head and neck flat on the ground in front of it.Because the head and neck are lightly colored, they blendin with the color of the soil. From a distance, it just lookslike the ostrich has buried its head in the sand, becauseonly the body is visible”). It is too late, however, to correctthis injustice.

An ostrich instruction tells the jury that to suspect thatyou are committing a crime and then take steps to avoidconfirming the suspicion is the equivalent of intendingto commit the crime. E.g., United States v. Giovannetti, 919F.2d 1223, 1228 (7th Cir. 1990). Suppose you thinkyou’ve rented your house to a drug gang, but to avoidconfirming your supposition you make sure not to drivenear the house, where you might observe signs of drugactivity. That would be the equivalent of knowledge thatyou had rented the house to the gang. It would be acase of physical avoidance of confirmation of one’s suspicionsbut there is also psychological avoidance, which isthe type alleged here and which requires the jury’s“distinguishing between a defendant’s mental effort ofcutting off curiosity, which would support an ostrichinstruction, and a defendant’s simple lack of mentaleffort, or lack of curiosity, which would not support anostrich instruction.” United States v. Carrillo, 435 F.3d 767,780 (7th Cir. 2006). It is the distinction between willfulignorance and ordinary ignorance.

I won't comment on it detail but a few of her key points are very problematic:

She says:

The government wants to curb infringement but is not serious in allowing owners to go after teenagers when it caps civil lawsuits at $500. If it wanted to put kids in jail, it would have created harsher penalties. Widespread commercial infringement seems like the more pressing concern.

I'm not sure what she meant by "not serious" but I hope she didn't mean that there should be no cap on statutory damages against individuals for "private purposes." While the Government may not intend to put teenagers in jail, a key point of the legislation, which was driven by CRIA, is to facilitate weapons of mass litigation in Canada to stop what CRIA considers to be "illegal" file sharing.

In any event, the real point is that the so-called "cap" of $500 is either poorly drafted or disingenuous - because it won't work as a "cap" as drafted. Even more importantly, the record industry in particular will likely sue for "uploading" - or "making available". This is not subject to the $500 cap. She doesn’t mention this. It’s subject to cap of $20,000 for each element of each "made available" song, and each song typically includes three copyrighted elements - the music, the performers’ performance and the sound recording itself. Do the arithmetic. It’s simple but gruesome. Potential liability for up to $60,000 for each song in a shared folder, and the music industry will argue that it need not prove that there was ever any actual distribution.

She also says:

... there are no statutory damages for bypassing locks for private use: so, in reality, you should be fine in bypassing the lock of that European DVD or cellphone. But this uncertainty could have been avoided. Canadian-made regulations will be essential.

That's wrong. There is an exception for statutory damages for an individual for bypassing a TPM for “private purposes” - but that’s only for the act of circumvention itself. (new s. 41(3)). That exception is effectively vitiated in the case of “infringements that were made possible because the defendant circumvented or caused to be circumvented..."(new s. 38.1.4)

This could very well mean that circumventing a regional code to view a European DVD results in statutory damages up to $20,000 - because at the very least, it must be "reproduced" in RAM in order to be viewed. Or, more to the point, copying the TPM protected DVD to an iPod or laptop would create exposure to statutory damages up to $20,000. Likewise, for ripping a protected CD onto an iPod. Or, for getting someone to unlock your cell phone (so you can buy a more advantageous SIM card and not get gouged for several dollars a minute by Canada's oligopolistic wireless services once you leave Canada) could lead to the same result because you “caused to be circumvented...”

As for regulations, one could wait an eternity. The faint hope of a future regulation does not solve a present policy error.

And I totally disagree with her when she suggests that the Bill “promotes distance learning, licensing of digital course packs and uses of online materials all within complicated limits that will be tested by evolving practices.” She right about the “complicated” part, but the Bill is a huge setback to the educational community, certain sectors of which unaccountably can’t figure this out. Fortunately, other sectors have seen through this. As has Prof. Laura Murray. More on this to follow. Rest assured.

She does make some good points in her analysis, but misses one of the real dangers of this bill, if passed. If it's passed, we can expect lots of litigation for enormous amounts of money in the same mode as the RIAA in the USA.

If weapons of mass litigation are to be handed over to the content industries - particularly the music industry - one must assume that they will not only be used but that they will be misused and abused. There are tens of thousands of families in the USA who know this only too well.

She also doesn't begin to deal critically with why the Government should defer to content owner demands to let TPM and contract vitiate fair dealing, the public domain and users' implied rights with respect to their content and devices that they have bought and paid for.

Thursday, June 19, 2008

His voice link mentions Michael's, Laura's and my blogs and quite correctly indicates that we are far from being "anti-copyright zealots" and that we not "partisans" ...in fact we are "great proponents of copyright"...

We just want to see a system that works for everyone, and not just the American Government and a few content industry trade associations....

He believes that a big problem will be that the Government is over-regulating what people can do with what they have bought and paid for.

Ten law professors have filed a briefin the American Thomas case supporting the argument that there is no "making available" right as such in the USA. In other words, without proof of actual downloading by someone other than the RIAA investigators, there should be no liability.Ms. Thomas was the single mother of two who has to pay $222,000 for downloading and "making available" nine songs, worth $9.91 on iTunes.

There is nothing in Bill C-61 to prevent such a travesty of justice in Canada. In fact, Bill C-61 could make the RIAA/CRIA dream of suing children and dead grandmothers even clearer and more viable in Canada than in the USA.

Full credit to the professors who took the time to do this. They are Annemarie Bridy, University of Idaho; Michael W. Carroll, Villanova University; Ralph D. Clifford, Southern New England School of Law; Thomas F. Cotter, University of Minnesota; Jon M. Garon, Hamline University; Stephen McJohn, Suffolk University; Tyler T. Ochoa, Santa Clara University; Niels B. Schaumann, William Mitchell College of Law; and Christopher Sprigman, University of Virginia.

And full credit to the trial judge for taking it upon himself to consider whether he had made a "manifest error" in his jury charge that it was unnecessary to prove actual distribution to a third party. Unfortunately, for whatever reason, Ms. Thomas' trial lawyer apparently did not deal with this issue at trial.

If the liability for "making available" falls through in the USA, it would be even more absurd for Canada to adopt the principle as set forth in Bill C-61.And make no mistake. There would be law suits in Canada - lots of them. The music industry can't wait to get going. They failed and fizzled four years ago - and I'm proud to have represented CIPPIC and to have played a key role in making that failure happen.

But Bill C-61 could be CRIA's sweet revenge.

Let us hope that the RIAA/CRIA approach to copyright law as expressed so clearly in Bill C-61 is clearly stopped at the Canadian/American border. Let Canada's children sleep well at night and let Canada's dead grandmothers rest in peace.

Asked about issues as issues related to copying legally purchased but locked CDs to an iPod, or breaking cell phone locks, he gave answers that can most generously be described as unresponsive and evasive. He described such basic questions as “technical” and “arcane.”

Asked about whether digital locks would lock down everything and override the new consumer “freedoms”, he said that wouldn’t be a problem because “the market would make those decisions.”

Then, he hung up.

And, whether by coincidence, or just tragic irony, it turns out that this is the last Search Engine show. This was a great and award wining show with excellent ratings - a sort of radio version of “This Hour Has Seven Days” devoted to cyber issues. It was very hard hitting. Like today’ episode.

So, of course, the show has been canned by CBC management.

Bravo, Jesse Brown et al.

Shame on CBC management, who are a disgrace to their role as guardians of the public trust in an independent state owned public broadcaster. It looks like the purge on elitism and excellence that is largely complete at Radio Two is now moving on over to Radio One.

HK

PS October 15, 2016:

RIP Jim Prentice, was died yesterday in a plane crash.Here's a hard to find archived copy of the notorious interview mentioned above. If this doesn't open properly for any reason, try this:

Saturday, June 14, 2008

On March 19, 2005, the Conservative Party of Canada - not yet Canada's New Government - published its promising Policy Declaration, which included the following section on copyright that I post for the convenience of readers and with a sense of nostalgia:

35. Copyright Legislation

i) The Conservative Party believes that the objectives of copyright legislation

should be:

a) to create opportunities for Canadian creators to enjoy the fruits of their labour to the greatest possible extent;

b) to ensure that the rights of Canadian creators are adequately protected by law;

c) that these rights are balanced with the opportunity for the public to use copyrighted works for teaching, researching and lifelong learning;

d) to continue to allow an individual to make copies of sound recordings of musical works for that person’s personal and individual use; and

e) that enforcement is applied fairly and in accordance with international standards.

ii) The Conservative Party believes that reasonable access to copyright works is a critical necessity for learning and teaching for Canadian students and teachers, and that access to copyrighted materials enriches life long learning and is an essential component of an innovative economy.

iii) A Conservative Government will give consideration to educational public policy goals within the copyright framework. A Conservative Government will work with industry to increase awareness and develop a public education campaign to better inform users and creators on the copyright laws in Canada.

iv) A Conservative Government will eliminate the levy on blank recording materials.

Wednesday, June 11, 2008

OTTAWA, June 11, 2008 -- The Honourable Jim Prentice, Minister of Industry, and the Honourable Josée Verner, Minister of Canadian Heritage, Status of Women and Official Languages, and Minister for La Francophonie, will deliver brief statements and answer media inquiries shortly after the tabling of a bill to amend the Copyright Act. Members of the media will also be able to attend a technical briefing and lock-up prior to the tabling of the bill to amend the Copyright Act.

Once the media lock-up has begun, no one will be allowed to leave the room or contact his/her office until the embargo is lifted. Journalists will be required to sign an undertaking to respect the release arrangements.

Wireless communication devices such as cellular phones, BlackBerrys, personal digital assistants or any other removable wireless communication devices (including modems, air cards and wireless microphones) will not be allowed in the lock-up area.

For further information, please contact:

Deirdra McCrackenPress SecretaryOffice of the Honourable Jim PrenticeMinister of Industry613-995-9001

Dominic GosselinPress SecretaryOffice of the Minister of Canadian Heritage,Status of Women and Official Languages andMinister for la Francophonie819-997-7788